President Kibaki’s Quest For Second Round of So-Called Shuttle Diplomacy To Defer ICC Cases Is Doomed To Fail

25Jan

According to Standard Online, Kibaki is bent on starting another round of the so-called shuttle diplomacy to bring the ICC cases back home for purported trial.

Just as similar efforts were ill-advised before and miserably failed accordingly at the expense of depleted public funds, so too will this new round fail.

To be sure, the Rome Statute provides under Article 19 that the State can challenge the admissibility of any case but only once, which Kenya has done already and lost.

To mount another challenge of admissibility, the very court which confirmed the charges must give it permission to do so, which is highly unlikely, given the government has done nothing to advance the argument termination or deferral is warranted.

The reasons the president cited the other day during the post-confirmation press conference simply don’t cut it as they are general and none specifically even as suggest the government is serious about pursuing these cases locally and that’s why it’s very unlikely and, in fact, certain that the second efforts to defer will fail.

Indeed, the government’s efforts must surely fail because the government can only seek permission of court to challenge the admissibility of the case beyond the one time allowed, only under Article 17(c) of the Statute, which provides that such application be based on the fact that “The person concerned has already been tried for conduct which is the subject of the complaint” and even then, ICC may still maintain jurisdiction if the trial is found to be a sham.

Although I have been a proponent of these cases being brought back home, the time to do this has passed now that the charges have been confirmed so the ICC process must be allowed to continue full steam to its conclusion.

Any further efforts to thwart the process must be viewed as an effort to shield the suspects and perpetuation of impunity contrary to the letter and spirit of the constitution with the ultimate outcome being denying the PEV victims the justice they deserve in addition to prolonging this sad and tragic chapter of our history.